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Now this is a slippery slope - 8/17/2008 3:50:52 PM   
TheHeretic


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Status: offline 		         Should a veteran face civilian prosecution for events while in uniform?  Is a civilian jury capable of rendering a competent verdict in such a case?

http://www.knbc.com/news/17214998/detail.html?dl=headlineclick

"This boils down to one thing in my mind: Are we going to allow civilian juries to Monday-morning-quarterback military decisions?" said Nazario's attorney, Kevin McDermott.

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RE: Now this is a slippery slope - 8/17/2008 3:57:45 PM   
celticlord2112


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quote:

ORIGINAL: TheHeretic

        Should a veteran face civilian prosecution for events while in uniform?  Is a civilian jury capable of rendering a competent verdict in such a case?

http://www.knbc.com/news/17214998/detail.html?dl=headlineclick

"This boils down to one thing in my mind: Are we going to allow civilian juries to Monday-morning-quarterback military decisions?" said Nazario's attorney, Kevin McDermott.

The civilian courts have no standing to hear this case.  Marines' combat activities are governed by the Uniform Code of Military Justice.  If Sgt. Nazario's actions in Fallujah were unlawful, they were a violation of the UCMJ, and therefore can only be judged by a court martial.

If there is a case to be made, there is ample standing to recall Sgt Nazario in order to present him before a court martial for a competent hearing of these charges.

The only correct course for a federal court should be to decline to hear the case, and remand the case to the Navy Judge Advocate General for proper dispensation.


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RE: Now this is a slippery slope - 8/17/2008 3:58:47 PM   
kittinSol


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Status: offline 		You have the answer, spot in the middle of the article you linked:

"Scott Silliman, a law professor and executive director of the Center on Law, Ethics and National Security at Duke University, said it has little to do with questioning military decisions and everything to do with whether a service member committed a crime.

"From a legal point of view, there is no difference in law between war and peace," he said."

And I sigh with relief.

Now, should a foreign civilian be judged by an American military jury, with all the secrecy this kind of trial entails? You don't have to answer this one, by the way. Just making a point.

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RE: Now this is a slippery slope - 8/17/2008 4:01:07 PM   
Dominatist


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< Message edited by Dominatist -- 8/17/2008 4:02:24 PM >

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RE: Now this is a slippery slope - 8/17/2008 4:02:53 PM   
Thadius


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Status: offline 		Thanks for the link. 

I have a serious problem with this.  If there were crimes committed while he was in uniform, he should be tried by the UCMJ, appointed a JAG lawyer and allow the jury of a court martial decide this case.  As far as I know he would still be subject to those charges and military courts, even after leaving active duty.

The location of the charges being brought don't surprise me, nor the timing.

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RE: Now this is a slippery slope - 8/17/2008 4:03:51 PM   
TheHeretic


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Status: offline 		        That was covered in the link, Celt. 

the law closes a loophole that allowed former military service members to slip beyond the reach of prosecution. Once they complete their terms, troops cannot be prosecuted in military court.
 
       If he wasn't still in the inactive reserve, he was out of jurisdiction.

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RE: Now this is a slippery slope - 8/17/2008 4:11:07 PM   
TheHeretic


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quote:

ORIGINAL: kittinSol
Now, should a foreign civilian be judged by an American military jury, with all the secrecy this kind of trial entails? You don't have to answer this one, by the way. Just making a point.



         But I will anyway, Kitten.  If under military governance/martial law, then yes.  And if he made his way to that tribunal by way of having run out of ammo and being captured right after shooting at us, he isn't a civilian anyway.  Technically, he should be executed promptly.

     The opinion you quote from the link is just that, one opinion.  Even if that is the correct approach, it still leaves the question of whether a civilian jury would be competent to the task. 

< Message edited by TheHeretic -- 8/17/2008 4:12:24 PM >

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RE: Now this is a slippery slope - 8/17/2008 4:14:06 PM   
celticlord2112


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quote:

ORIGINAL: kittinSol

You have the answer, spot in the middle of the article you linked:

"Scott Silliman, a law professor and executive director of the Center on Law, Ethics and National Security at Duke University, said it has little to do with questioning military decisions and everything to do with whether a service member committed a crime.

"From a legal point of view, there is no difference in law between war and peace," he said."

Professor Silliman proves Oliver Wendell Holmes' dictum about the law being an ass.

He is also wrong.

Even if Sgt Nazario's actions were illegal, the controlling legal authority at the time was not Federal law, but the UCMJ.  Under the UCMJ, the court of competent jurisdiction is a court martial convened by the Navy Judge Advocate General.

When one enlists in the military, he or she swears the following oath:
quote:


I (state your name) do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to the regulations and the Uniform Code of Military Justice. So help me God.

The charge that is laid upon all service men and women is to conduct themselves at all times in accordance with the orders of their superiors, the regulations, and the UCMJ, in that order of ascending precedence.

The federal courts have no standing to hear this matter.  They should have declined this prosecution as a matter of law.



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RE: Now this is a slippery slope - 8/17/2008 4:18:57 PM   
celticlord2112


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quote:

ORIGINAL: TheHeretic

       That was covered in the link, Celt. 

the law closes a loophole that allowed former military service members to slip beyond the reach of prosecution. Once they complete their terms, troops cannot be prosecuted in military court.
 
       If he wasn't still in the inactive reserve, he was out of jurisdiction.

Then the proper remedy is to bring the person back to active duty for the purpose of convening a proper court martial, and the law should be amended to that effect.

The danger of this law is not that it may alter conduct on the battlefield, but that it eradicates the UCMJ as a controlling legal authority.  It demolishes the distinction between soldier and civilian.  It is dangerous, stupid, self-defeating, and very likely unconstitutional (still reading up on that last point).


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RE: Now this is a slippery slope - 8/17/2008 4:23:18 PM   
slvemike4u


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Status: offline 		Though you are of course right CL,I wonder if the former Sgt is out of juristiction from a military court,should not civilian authority step in and judge the case.As to whether or not a civilian jury is competant to hear the case ,I wonder why anyone would assume not.Civilian Jury's are asked to sit thru all sorts of case's in which they hold no specific expertise..for instance tax cases,Rico violations etc.etc.we don't require the Jury in these instances to have advanced degrees in the different discilines assoc.with such cases why here?...

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RE: Now this is a slippery slope - 8/17/2008 4:23:46 PM   
Hippiekinkster


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Status: offline 		So, in CL's black-and-white world, a soldier who, while in uniform and on active duty, commits a crime (let's say he assaults someone in a Hartsfield-Jackson bar), should not be subject to APD's jurisdiction? Is that right?

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RE: Now this is a slippery slope - 8/17/2008 4:32:38 PM   
celticlord2112


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quote:

Though you are of course right CL,I wonder if the former Sgt is out of juristiction from a military court,should not civilian authority step in and judge the case.As to whether or not a civilian jury is competant to hear the case ,I wonder why anyone would assume not.Civilian Jury's are asked to sit thru all sorts of case's in which they hold no specific expertise..for instance tax cases,Rico violations etc.etc.we don't require the Jury in these instances to have advanced degrees in the different discilines assoc.with such cases why here?...

The jury is irrelevant.  The court lacks the competent jurisdiction. 

Should civilian authority step in?  No.  Recall the man to active duty and present him before a court martial.  Only a court martial can hear matters covered by the UCMJ, and any actions taken in Fallujah by any US military personnel are covered by the UCMJ.

I have no quarrel with a man answering for his alleged misdeeds.  I have a major quarrel with the idea of civilian courts hearing military matters.  That is not their function, that is not their role, that is not their purpose.


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RE: Now this is a slippery slope - 8/17/2008 4:40:16 PM   
DomKen


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quote:

ORIGINAL: celticlord2112
The jury is irrelevant.  The court lacks the competent jurisdiction. 

Should civilian authority step in?  No.  Recall the man to active duty and present him before a court martial.  Only a court martial can hear matters covered by the UCMJ, and any actions taken in Fallujah by any US military personnel are covered by the UCMJ.

I have no quarrel with a man answering for his alleged misdeeds.  I have a major quarrel with the idea of civilian courts hearing military matters.  That is not their function, that is not their role, that is not their purpose.


I'm curious, how precisely do you advocate bringing this guy back to active duty? He has completed his entire contract and is therefore 4-A with a valid discharge so he can't be legally drafted even if we reinstated the draft. Are you advocating sending a press gang out after him?

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RE: Now this is a slippery slope - 8/17/2008 4:49:19 PM   
popeye1250


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RE: Now this is a slippery slope - 8/17/2008 4:52:52 PM   
TheHeretic


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quote:

ORIGINAL: slvemike4u

.As to whether or not a civilian jury is competant to hear the case ,I wonder why anyone would assume not.Civilian Jury's are asked to sit thru all sorts of case's in which they hold no specific expertise..for instance tax cases,Rico violations etc.etc.we don't require the Jury in these instances to have advanced degrees in the different discilines assoc.with such cases why here?...



        There are a number of reasons to raise the question, Mike.  Among them; The military operates inside a completely different worldview than civilians.  That must be a factor in any decision.  Would a civilian jury be able to understand the realities of a situation to render a competent verdict.

       There is even a very good reason for an anti-war, knee-jerk, leftist type to be opposed to this.*


*edit to add:  Not talking about anyone in particular, just that segment of our society. 

< Message edited by TheHeretic -- 8/17/2008 4:54:52 PM >

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RE: Now this is a slippery slope - 8/17/2008 5:10:35 PM   
slvemike4u


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quote:

ORIGINAL: celticlord2112

quote:

Though you are of course right CL,I wonder if the former Sgt is out of juristiction from a military court,should not civilian authority step in and judge the case.As to whether or not a civilian jury is competant to hear the case ,I wonder why anyone would assume not.Civilian Jury's are asked to sit thru all sorts of case's in which they hold no specific expertise..for instance tax cases,Rico violations etc.etc.we don't require the Jury in these instances to have advanced degrees in the different discilines assoc.with such cases why here?...

The jury is irrelevant.  The court lacks the competent jurisdiction. 

Should civilian authority step in?  No.  Recall the man to active duty and present him before a court martial.  Only a court martial can hear matters covered by the UCMJ, and any actions taken in Fallujah by any US military personnel are covered by the UCMJ.

I have no quarrel with a man answering for his alleged misdeeds.  I have a major quarrel with the idea of civilian courts hearing military matters.  That is not their function, that is not their role, that is not their purpose.

My question than would be this,if said man under our system of law is not subject to involuntary recall to stand in front of a military court,what recourse is there...

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If we want things to stay as they are,things will have to change...Tancredi from "the Leopard"

Forget Guns-----Ban the pools

Funny stuff....https://www.youtube.com/watch?v=eNwFf991d-4


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RE: Now this is a slippery slope - 8/17/2008 5:14:59 PM   
slvemike4u


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quote:

ORIGINAL: TheHeretic

quote:

ORIGINAL: slvemike4u

.As to whether or not a civilian jury is competant to hear the case ,I wonder why anyone would assume not.Civilian Jury's are asked to sit thru all sorts of case's in which they hold no specific expertise..for instance tax cases,Rico violations etc.etc.we don't require the Jury in these instances to have advanced degrees in the different discilines assoc.with such cases why here?...



      There are a number of reasons to raise the question, Mike.  Among them; The military operates inside a completely different worldview than civilians.  That must be a factor in any decision.  Would a civilian jury be able to understand the realities of a situation to render a competent verdict.

     There is even a very good reason for an anti-war, knee-jerk, leftist type to be opposed to this.*


*edit to add:  Not talking about anyone in particular, just that segment of our society. 
Must tell you I got a good laugh at of the last part of your post...even with the thinly disguised disclaimer
But back to my original question,the same argument could be applied to compicated Rico cases or Tax-evasion and acounting cases.Shall we demand only jurys with more than a lay-mans knowledge of such cases to sit in those juries.This would be a much slipperey slope IMHO

< Message edited by slvemike4u -- 8/17/2008 5:16:10 PM >

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If we want things to stay as they are,things will have to change...Tancredi from "the Leopard"

Forget Guns-----Ban the pools

Funny stuff....https://www.youtube.com/watch?v=eNwFf991d-4


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RE: Now this is a slippery slope - 8/17/2008 5:22:02 PM   
celticlord2112


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My question than would be this,if said man under our system of law is not subject to involuntary recall to stand in front of a military court,what recourse is there...

None.  The matter is not justiciable.


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RE: Now this is a slippery slope - 8/17/2008 5:23:47 PM   
TheHeretic


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Status: offline 		          Don't flatter yourself, Mike.  There do seem to be thin-skinned folk about today, though.


          RICO, taxation, these things might be difficult for juries to grasp, but they still take place within the civilian realm, under the same set of laws a civilian jury would bbe subject to.  There is a sharp line between civilian and military codes of conduct.

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RE: Now this is a slippery slope - 8/17/2008 5:26:08 PM   
slvemike4u


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Status: offline 		So CL you would advocate for a man to be able to get away with murder,hypothetically speaking ,if he had been wearing a uniform when his crime was committed.Barring the possibility of military adjudication of course...

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If we want things to stay as they are,things will have to change...Tancredi from "the Leopard"

Forget Guns-----Ban the pools

Funny stuff....https://www.youtube.com/watch?v=eNwFf991d-4


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